A reservation permissible by enabling provisions, by making it 100%, would become discriminatory and impermissible - reservation of 100% to Scheduled Tribe candidates for post of teachers by Andhra Pradesh quashed : SC.

The SC on April 22, 2020 {CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS.} held that by way of 100% reservation, the employment to others was illegally deprived and they have no chance of employment as against the post of teachers elsewhere.

In the present reference before the Constitutional Bench of SC, comprising of Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M.R. Shah & Justice Aniruddha Bose, the validity of the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, was under challenge.

G.O.Ms. No.3 dated 10.1.2000, validity of which was falling for consideration before the SC in present case, reserved all posts in the educational institutions within the scheduled areas in favour of the local Scheduled Tribes.

Following legal Questions were considered & answered by the SC to decide the legality and validity of the aforesaid order:

Question No.1: What is the scope of Para 5(1) of Schedule V of   the   Constitution   of   India?;   and   Question   No.1(a):   Does   the provision empower the Governor to make a new law? 

It was held by the SC that the Governor in the exercise of powers under Para 5(1),   Fifth   Schedule   of   the   Constitution,   can   exercise   the   powers concerning any particular Act of the Parliament or the legislature of the State. It was held that the Governor can direct that such law shall not apply to the Scheduled Areas or any part thereof. It was held that the Governor is empowered to apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and can also issue a notification with retrospective effect.

It was held that the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997, deals with reservation in the State in the field of public services. G.O. Ms. No.3 of 2000 did not amend the said Act. It was held that the provisions of the other Acts mentioned in the notification did not deal with the extent of reservation. It was further held that  Sections 78 and 79 of the A.P. Education Act, 1982 and Sections 169, 195, and 268 of the A.P. Panchayati Raj Act, 1994, are not related to reservation. It was observed that the rules were framed under the proviso to Article 309. They were not framed under the main provision by the legislature. It was held that the Governor in the exercise of power under Para 5(1) of Schedule V could have amended the Public Services Act, 1997, or direct it not to apply to Scheduled Areas. It was held that the creation of 100 per cent reservation had the effect of making a new law under Para 5(1) without reference to the Act of State or   Central   legislation.    It was held that independently   of   that   power   could   not   be exercised   within   the   purview   of   Para   5(1)   of   Schedule   V   to   the Constitution of India. Even otherwise, even if the Act of 1997 would have been modified by the Governor, 100% reservation could not have been provided. 

It was held that  that the Governor's power to make new law is   not   available   in   view   of   the   clear   language   of   Para   5(1),   Fifth Schedule does not recognise or confer such power, but only power is not to apply the law or to apply it with exceptions or modifications. Thus, it was held that notification is ultra   vires to Para 5(1) of Schedule V of the Constitution.

Question No.1(b): Does the power extend   to   subordinate legislation?

It was held that the  rules   framed   under   the   proviso   to   Article   309   of   the Constitution   cannot be said   to   be   the   Act of Parliament or State legislature. Though the rules have the statutory force, they cannot be said   to   have   been   framed   under   any   Act   of   Parliament   or   State legislature.  It was held that the rules remain in force till such time the legislature exercises   power.    It was held that the   power   of   the   Governor   under   Para   5(1)   of Schedule V of the Constitution is restricted to modifying or not to apply, Acts of the Parliament or legislature of the State.   Thus, it was held that  the rules could not have been amended in the exercise of the powers conferred under Para 5(1) of Schedule V. It was held that the rules made under proviso to Article 309 of the Constitution cannot be said to be an enactment by the State legislature. Thus,  it was held that it was not open to the Governor to issue the impugned G.O. No.3/2000.

Question No.1(c): Can the exercise of the power conferred in Para   5   of   the   Fifth   Schedule   override   fundamental   rights guaranteed under Part III?

It was held that the   power   is   conferred   on   the   Governor   to   deal   with   the scheduled areas. It is not meant to prevail over the Constitution. It was held that the power of the Governor is pari passu with the legislative power of Parliament and the State. It was held that the legislative power can be exercised by the Parliament or the State subject to the provisions of Part III of the Constitution. It was held that the power of the Governor does   not   supersede   the   fundamental   rights   under   Part   III   of   the Constitution.   It   has   to   be   exercised   subject   to   Part   III   and   other provisions of the Constitution. When Para 5 of the Fifth Schedule confers power on the Governor, it is not meant to be conferral of arbitrary   power. It was held that the   Constitution   can   never   aim   to   confer   any arbitrary   power   on   the   constitutional   authorities.   They   are   to   be exercised in a rational manner keeping in view the objectives of the Constitution. The powers are not in derogation but the furtherance of the constitutional aims and objectives.

Question No.1(d): Whether the exercise of power under the Fifth Schedule of the Constitution overrides any parallel exercise of power by the President under Article 371D?

It was held that the main question to be considered is whether there is any conflict between the Presidential Order and the G.O. Ms. No. 3 of 2000 issued under the order of the Governor under Para 5(1) of the Fifth Schedule of the Constitution. It was held that considering the geographical disparity in public employment, Article 371D was inserted in the Constitution, providing candidates from certain districts/zones to form the local cadre   for   different   posts   for   different   parts   of   the   States.  It was held that the Presidential Order was issued providing district/zone for local cadre, on the other hand, the order issued by the Governor has reserved all the   posts   of   teachers   in   the   Scheduled   Areas   for   Schedule   Tribe candidates. It was held that the   aspiring   candidates   of   the   district/zone   in   the Scheduled Area cannot apply for the post of teachers in the district as 100 per cent reservation was made vide G.O.Ms. No. 3 of 2000 by the Governor.   It was held that it is also not disputed that aspiring candidates cannot apply   outside   the   district/zone   because   of   the   restrictions   under Article 371D of the Constitution. It was held that as there is 100 per cent reservation provided   for   the   Scheduled   Tribes   in   the   Scheduled   Areas,   other candidates of Scheduled Castes, General and Other Backward Classes category cannot apply at all in other districts. They are being denied the opportunity of getting the employment as against the posts in question. Thus, it was held that the order issued by the Governor is clearly in conflict with   the   Presidential   Order   issued   under   Article   371D.     The candidates of local areas or other candidates except for Scheduled Tribes   have   been   deprived   of   the   opportunity   of   seeking   public employment because of the order issued by the Governor, and they cannot   apply   outside   the   local   area   in   view   of   the   Presidential notification.  It was held that  the Presidential notification intends that they have to apply within the district, and the Governor's notification takes away that right. Thus, it was held that there is a clear repugnancy between the notification issued by the President and that subsequent order issued by the Governor in the exercise of powers under Para 5, Fifth Schedule of the Constitution.   It was held that it is not possible to harmonise both the notifications. Apart from that, there is total deprivation. The Presidential Order applied to the entire State and carved out a special provision that applies with a non­-obstante clause.

It was held that the Governor is competent to issue an order which is not in conflict with the Presidential Order.   The Governor issued the order when the Presidential Order was already in force in the entire State. It was held that the Governor could not have issued the order in derogation to the Presidential Order. It was held that 100 per cent reservation could not have been provided as that violates the Presidential Order.

Question No.2: whether 100%   reservation   is permissible under the Constitution?

It was held that there were no such extraordinary circumstances to provide a 100 percent reservation in Scheduled Areas. It is an obnoxious idea that tribals only should teach the tribals. When there are other local residents, why they cannot teach is not understandable. The action defies   logic   and   is   arbitrary.     Merit   cannot   be   denied   in   toto   by providing reservations.

It was held that a reservation that is permissible by protective mode, by making it 100 percent would become discriminatory and impermissible. It was held that the opportunity of public employment cannot be denied unjustly to the incumbents, and it is not the prerogative of few.   The citizens have equal   rights,   and   the   total   exclusion   of   others   by   creating   an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.   Equality of opportunity and pursuit of choice   under   Article   51­A   cannot   be   deprived   of   unjustly   and arbitrarily. As per the Presidential Order, the citizens of the locality and outsiders were entitled to 15 percent of employment in the district cadre in terms of clause 10 of Article 370(1) (d) of the Constitution. Thus, it was held that the G.O. does not classify but deals with reservations. It was held that it was contrary to the report sent to the President by the Governor, which indicated even the posts which were reserved for scheduled tribes teachers, they were not available as such Tribes Advisory Council decided to fill them from other non­local tribals.

It was held that G.O. Ms. No.3/2000 is wholly impermissible and cannot be said to be legally permissible and constitutionally valid. It was observed that it can be said that action is not only irrational, but it violates the rights guaranteed under Part III of the Constitution and is not sustainable.

Question   No.3: Whether   the   notification   merely contemplates a   classification   under   Article   16(1)   and   not reservation under Article 16(4)?

It was held that the incumbents of various categories have the right to stake a claim for the employment of which they have been deprived. Thus, it is not a matter of classification. The reservation under Article 16(4) was made. It was held that by way of 100% reservation, the employment to others was illegally deprived and they have no chance of employment as against the post of teachers elsewhere because of the order under Article 371D in which district/zone is a unit. It was held to be clear case of tinkering with reservation.

Question No.4: Whether the conditions of eligibility that is the origin and cut­off date to avail the benefit of reservation in the notification is reasonable:

It was held that public employment envisages opportunity to all, who have been provided reservation is by way of exception to do the compensatory jobs.   The condition above deprives the scheduled tribes who are permanent residents of the areas and have settled after the said cutoff date. Thus, it was held that the classification created is illegal, unreasonable, and arbitrary. Making such a provision that a person should be a resident on or before 26th January 1950 to date is discriminatory and has the effect of exceeding the purpose of providing the reservation. It was held that it defeats the rights of other similar tribes who might have settled after 26^th January 1950 in the area taken care of in the Presidential Order under Article 371­D. It was held that it is violative of Articles 14, 15(1) and 16 of the Constitution and has no rationale with the purpose sought to be achieved. It creates a class within a class, and the classification made failed   to   qualify the   parameters   of   Articles   14,   15   and   16   of   the Constitution of India.

It was held that as a sequel   to the quashing of G.O. Ms. No.3 of 2000, the appointments made in excess of the permissible reservation cannot survive and should be set aside.   However, on behalf of State and other respondents, it was urged that appointments may not be set aside. In the peculiar circumstances, it was directed that the incumbents, who have been appointed, cannot be said to be at fault and they belong to Scheduled Tribes.

CONDUCT OF RESPONDENT(S)

The SC held that it cannot ignore the fact that a similar G.O. was issued by the erstwhile   State   Government   of   Andhra   Pradesh   in   the   year   1986, which   was   quashed   by   the   State   Administrative   Tribunal,   against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998.   After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again. But instead,   it   issued   G.O.   Ms.   No.3   of   2000,   which   was   equally impermissible,   even   if   the   A.P.   Regulation   of   Reservation   and Appointment to Public Services Act, 1997 would have been amended, in   that   event   also   providing   reservation   beyond   50%   was   not permissible.   It was observed that it is rightly apprehended by appellants that the State may again by way of mis­adventure, resort to similar illegal exercise as was done earlier.   It was held it was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney and other decisions holding that the limit of reservation not to exceed 50%. It was held there was no rhyme or reason with the State Government to resort to 100% reservation. It is unfortunate that illegal exercise done in 1986 was sought to be protected by yet another unconstitutional attempt by issuing G.O.Ms. No.3 of 2000 with retrospective effect of 1986, and now after that 20 years have passed. It was held that in the peculiar circumstance, it saves the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise   in   the   future.     It was held that if   they   do   so   and   exceed   the   limit   of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date. 

Resultantly,  the appeals were allowed by the SC, save the appointments made so far conditionally with the aforesaid riders.